Hansen v. Hansen

• Decision Date: 03 February 2012
• Docket Number: No. 20090556.,20090556.
• Citation: 701 Utah Adv. Rep. 4,270 P.3d 531,2012 UT 9
• Parties: Kay Lynn HANSEN, Plaintiff and Respondent, v. Steven L. HANSEN, Defendant and Petitioner.
• Court: Utah Supreme Court

2012 UT 9

270 P.3d 531

701 Utah Adv. Rep. 4

Kay Lynn HANSEN, Plaintiff and Respondent,

v.Steven L. HANSEN, Defendant and Petitioner.

No. 20090556.

Supreme Court of Utah.

Feb. 3, 2012.

Ann L. Wassermann, South Jordan, for plaintiff.

F. Kevin Bond, Budge W. Call, Salt Lake City, for defendant.

On Certiorari to the Utah Court of Appeals

Justice LEE, opinion of the Court:

¶ 1 In this case we are asked to clarify the standards for redirection of child support payments under Utah Code section 78B–12–108. The support order at issue here required petitioner Steven Hansen to pay child support to his ex-wife, but he subsequently sought to redirect his support payments to a homeless shelter where the child resided for a period of time. Because the homeless shelter is not a party to these proceedings and is legally ineligible to become the child's physical custodian in any event, we affirm the decision of the court of appeals and hold that the district court correctly declined to order redirection of child support to the shelter.

I

¶ 2 Steven and Kay Hansen divorced in Iowa in 1998. The divorce court awarded the couple joint custody of their daughter, J.H. At that time, Kay was granted sole physical custody of J.H., and Steven was ordered to pay monthly child support to Kay. Steven subsequently moved to California, and Kay to Utah. J.H. left her mother's home on October 1, 2006. After various stays with grandparents, other family members, and a state-run facility, J.H. entered a private homeless shelter, called Volunteers of America Utah Transition Home (VOA), on July 18, 2007. J.H. left VOA at Kay's request on August 17, 2007. She returned to VOA on October 9, 2007, however, and remained there through her eighteenth birthday.

¶ 3 On April 25, 2008, Steven filed a petition to redirect child support from Kay to VOA, where J.H. was then living. On May 15, 2008, a hearing on Steven's petition was held before a commissioner. Steven argued that because J.H. resided at VOA and VOA provided for her daily needs, redirection was necessary so that the support payments would be used for J.H.'s benefit. Steven premised his argument on Utah Code section 78B–12–108(1), which provides generally that child support is “for the use and benefit of the child and shall follow the child.” Kay responded that she should continue to receive child support because, although J.H. no longer resided with her, she continued to pay for J.H.'s primary care, including buying clothing for J.H., paying for her school registration fees, and transporting J.H. to and paying for her dental, medical, and therapy appointments.

¶ 4 The commissioner recommended denial of Steven's motion to redirect child support payments. He reasoned that Kay remained J.H.'s physical custodian, that VOA did not become the new physical custodian by mere provision of sustenance and shelter, and that the support statute accordingly did not allow for payments to be redirected to VOA. The district court accepted the commissioner's recommendation and denied Steven's motion. Steven appealed to the court of appeals.

¶ 5 The court of appeals affirmed the district court's denial of Steven's motion. See Hansen v. Hansen, 2009 UT App 152U, 2009 WL 1636017. The court based its decision on Utah Code section 78B–12–108(2), which allows for automatic redirection of child support “when physical custody changes” to (1) a parent, (2) a relative, or (3) the state. Apparently reading the term “when physical custody changes” as a restriction on the more general proviso in Utah Code section 78B–12–108(1) that child support “shall follow the child,” the court held that Kay had “not lost physical custody of the child” and that the district court accordingly “did not err in concluding that Utah Code section 78B–12–108(1) does not require child support payments to be redirected” to VOA. Id. para. 3. Kay remained J.H.'s physical custodian, the court reasoned, because she “remain[ed] liable for the support of the child, including the responsibility to pay school fees, buy clothing, transport her to doctor and counseling appointments, attend to her medical needs, and pay her medical expenses.” Id.

¶ 6 Steven filed a petition for writ of certiorari to this court. We granted Steven's petition on two issues: (1) whether Utah Code section 78B–12–108(1) requires that the child support payments be redirected in this case and (2) whether the district court and court of appeals erred in construing or applying the provisions of section 78B–12–108(2) in this case.

II

¶ 7 The support statute contains two provisions: (1) a general statement that support shall follow the child and (2) a specific provision providing guidelines for redirection of child support to a new physical custodian. Specifically, the statute provides as follows:

(1) Obligations ordered for child support and medical expenses are for the use and benefit of the child and shall follow the child.

(2) Except in cases of joint physical custody and split custody as defined in Section 78B–12–102, when physical custody changes from that assumed in the original order, the parent without physical custody of a child shall be required to pay the amount of support determined in accordance with Sections 78B–12–205 and 78B–12–212, without the need to modify the order for:

(a) the parent who has physical custody of the child;

(b) a relative to whom physical custody of the child has been voluntarily given; or

(c) the state when the child is residing outside of the home in the protective custody, temporary custody, or custody or care of the state or a state-licensed facility for at least 30 days.

Utah Code § 78B–12–108.

¶ 8 Steven contends that subsection (1) governs this case and that his child support should have been redirected to “follow” J.H. to VOA. In Steven's view, the predicate for redirection of child support was established when VOA provided room and board for J.H. Because child support is “for the use and benefit of the child,” Steven asserts that his child support payments should “follow the child” to VOA under subsection (1), without regard to whether the rights and obligations attendant to physical custody have changed.

¶ 9 As for subsection (2), Steven asserts that the redirection provision merely “facilitate[s] the mandate in subsection (1) by automatically shifting the direction of child support without a court order to certain persons or entities.” Steven insists that there is nothing in subsection (2) that prevents a party from seeking a ruling from the court to direct child support payments to follow the child to another entity as prescribed by subsection (1). Steven thus views subsection (1) as ultimately controlling, and accordingly challenges the district court and the court of appeals for treating subsection (2) as preventing them from ordering a redirection of child support.

¶ 10 We find this view untenable and affirm the lower courts' interpretation of the statute. Subsection (1)'s general directive cannot possibly be interpreted unqualifiedly, as Steven suggests, to redirect support payments any time anyone provides any shelter or sustenance to a child. If that were the law, support payments would have to be divvied out to every neighbor who offered up a peanut butter sandwich or a lollipop to a child of divorced parents. The logistical implications of this approach ought to give us cause for concern, as it would inject doubt and mischief into a legal regime where certainty and forthrightness are paramount.

¶ 11 The broad, literal construction that Steven affords to subsection (1), moreover, would rob the terms of subsection (2) of their plain meaning. Subsection (2) specifically authorizes redirection of child support only “when physical custody changes from that assumed in the original order.” This specific limitation modifies the general statement in subsection (1) that child support “follow the child.” And ultimately Steven's position fails under the plain text of the statute, as it construes a general statement of statutory purpose in a way that would override a specific standard for implementing that purpose. See, e.g., Dairyland Ins. Co. v. State Farm Mut. Auto. Ins. Co., 882 P.2d 1143, 1146 (Utah 1994) (noting “the established rule that when two provisions [of a statute] address the same subject matter and one provision is general while the other is specific, the specific provision controls”).

¶ 12 Subsection (1)'s general principle says nothing about the circumstances under which child support payments are to be redirected. That is dictated instead by subsection (2), which provides for redirection of support payments upon a change in “physical custody,” a term of art that draws a clear distinction between the neighbor who offers a peanut butter sandwich and a person who is legally given a duty to care for and supervise a child. The neighbor lacks the quality of a physical custodian (despite her charitable offering of sustenance) because she lacks any legal right or responsibility to supervise or control the child. Any person or entity in that position likewise fails to qualify as a custodian.¹

¶ 13 Thus, to harmonize and give meaning to both provisions, we hold that child support may be redirected only to a person who acquires “physical custody” of the child under the law. Because subsection (2) allows redirection of child support without modification of the support order only when custody changes to a parent, relative, or the state, we also hold that modification of the support order would be required in a case like this one where the new putative custodian is someone other than those three listed types of custodians.

¶ 14 In so doing, we adopt a concept of “physical custody” in line with that embraced by the court of appeals. Specifically, we hold that “physical custody” requires more than the mere provision of shelter and sustenance. In Utah and elsewhere, physical custody implicates the right and responsibility...